As many of our greatest legal minds parse every word and gesture of the Justices in the ongoing Affordable Care Act-fest, we should pause to reflect on what it says about our polity that (once again) nine unaccountable people in a room wield veto power over democratically-enacted legislation dealing with an issue of fundamental political and economic significance to our society.

Brian - Even though I'll be upset by any decision striking down the ACA, I don't share your apparent distaste for the unaccountability of the Justices. Seeing as how the American public is largely ignorant of the law I shutter to think what the Supreme Court would look like if the justices were subject to the whims of the average voter.

Judicial review has been in place for over two hundred years and has been one of our most successful exports. I'm okay with it and even here the sky won't fall. If Brown v. Bd. only did so much, I think this will as well.

I agree with Joe. Even if the well-intentioned ACA is struck down due to Kennedy's inability to distinguish between historical abstractions and present day reality, and despite Dred Scott v. Sandford, Bush v. Gore and similar episodes, I continue to believe that over the history of our republic, the platonic guardians have been a feature and not a bug.

I'm ambivalent about it myself--maybe a "feature that bugs me" is what it comes to, although I believe our system would do fine without judicial review.

To be clear, I am not suggesting that the Justices should be "accountable to the whims of the voter." That would not be good for many reasons. Rather, I am comparing two institution on which should have final say over decisions of this nature and magnitude, one accountable to voters and the other not.

I am also suggesting--or hoping--that the individual Justices keep in a corner of their mind, while wrestling with constitutional doctrines that provide no clear single answer in this case, that they are nine individuals in a room making a decision that will have a major impact on 300 million citizens who have no say.

Here’s the problem. The five conservative justices probably believe that the individual mandate is unconstitutional under the text and original meaning of the Commerce Clause. They also probably believe that it is constitutional under the most plausible reading of existing precedent. But that precedent was established because the Court didn’t want to strike down a whole bunch of economic legislation that was very popular and widely regarded as vital to the New Deal. (That and threats of retaliation from the Roosevelt administration).

Here, by contrast, the Court is being asked to strike down the individual mandate, which is very unpopular, and which may or may not be vital to the operation of a single law that itself does not command majority support. If it upholds the law, it would be deferring to a Congress that was largely repudiated by the voters in the following election, precisely because they opposed the law.

So even though I would prefer to see the political branches resolve this problem, the deference issue isn’t quite as simple as you present it.

we should pause to reflect what it says about our polity that (once again) nine unaccountable people in a room wield veto power over democratically-enacted legislation dealing with an issue of fundamental political and economic significance to our society.

It says we enjoy a constitutionally limited government (occasionally) enforced by the check of judicial review.

BTW, I would shy away from playing the democracy card in this case because representative democracy is only legitimate when our elected representatives are implementing the will of the people and Obamacare is the first major legislation in modern history opposed by pluralities to majorities of American voters and did not gain a single vote from the minority party.

If the old canard about the Court following the polls is correct, this law will be found unconstitutional in its entirety.

"The Constitution is not a suicide pact" is a maxium most closely associated with the right wing.

Yet strangely it is the right wing Justices who are saying in effect: sure there's this problem that is sickening and killing and impoverishing millions of citizens, but the Constitution forbids you to solve it.

"The Constitution is not a suicide pact" is most commonly invoked in contexts of national emergency or crisis.

Well, there is no national emergency more clear and present than the ever smaller percentage of Americans who can get care when they get injured or sick. Not because we don't know how to provide the car, not because we don't put a lot of money into care, but because that money doesn't deliver the care; it gets spent wastefully, it gets spent on other things, it gets eaten by overhead, it goes into the pockets of giant corporations.

Now I know the counterargument: no, the Constitution merely says you can't solve it in that way. The key point is analysis reveals this is a highly constrained system; any solution requires broad participation. If the Constitution locks out any way of getting broad participation, there is no solution. Yet the Constitution is not a suicide pact.

What's the difference between 9 unaccountable judges striking down a federal law and the same unaccountable judges extrapolating a Con right to an abortion when in fact many of the States would ban it had it not been for Roe v. Wade.

I have a problem with any argument that alludes to "unaccountable" judges. That's what they are there for - to decide cases on Con grounds, away from the whims of the public.

jpk said..."The Constitution is not a suicide pact" is a maxium most closely associated with the right wing.

Right wing?

The term was coined and then repeated by two progressive democratic political operatives, Justice Robert H. Jackson in his Terminiello v. Chicago dissent and then by Justice Arthur Goldberg in Kennedy v. Mendoza-Martinez.

The term was used to attack the Constitution's limit on government power as an alleged impediment to national security.

Your use of the term to attack the Constitution's limit on government power as an alleged impediment to Obamacare is in the same progressive vein.

Progressives have been at war with the Constitution's limits on government power for well over a century. This may be one of the rare occasions when the Court does its job and actually enforces the Constitution. Maybe.

Quoting mls: "Here, by contrast, the Court is being asked to strike down the individual mandate, which is very unpopular, and which may or may not be vital to the operation of a single law that itself does not command majority support."

The fact that something is unpopular doesn't mean it shouldn't be done anyway. The Civil Rights Act and Voting Rights Act were massively unpopular depending on what segment of the population you were looking at.

Personally, I would be inclined to disregard the views of those who have no dog in the fight. That will relieve me of the burden of reading the briefs by some of the amici. I can line up the intended beneficiaries of the measure on one side (the uninsured), and the "victims" of the measure on the other side (uh, give me a minute...), and then see what the popularity poll results say.

I realize there are camps out there who say we will have 300 million victims because some future Congress might compel us to eat broccoli against our will, but I don't subscribe to such arguments.

Given his rather good research into the origins and philosophy of progressivism, it would be fun to needle Beck with the fact that the phrase "the Constitution is not a suicide pact is progressive in both origin and intent.

"They also probably believe that it is constitutional under the most plausible reading of existing precedent."

I don't know why it is "probably" true that they think this which would mean all this "unprecedented" and "beyond what came before" business isn't even believed by those five.

"But that precedent was established because"

Reasons were provided, not a one that "the Constitution allows it." The justices over the years very well thought that & in fact FDR appointed the first set for just that reason.

"which is very unpopular"

Some of the stuff they upheld was popular, some was not. Furthermore, they are being asked to strike down the law as a whole, lots of which IS popular. To the degree the sour has to be taken with the sweet, that's life.

"and which may or may not be vital to the operation of a single law that itself does not command majority support"

Again, the premise is wrong. First, the same applies to lots of the precedents referenced. Second, the law itself has "majority" support as a whole & regardless, it was passed by the majority that counts. I guess, you know, we can ignore that, and rule by current polls, polls that repeatedly don't even get the law right. We can call this "Perot review."

"a Congress that was largely repudiated by the voters in the following election, precisely because they opposed the law"

How so? The Dems retained control of the Senate. The House went to the Republicans. Why? Well, various things. First, midterm elections usually go that way in some fashion. Second, many were upset with TARP etc. The idea the 2010 elections were "precisely" about one law is, I'm sorry, patently untrue.

"So even though I would prefer to see the political branches resolve this problem, the deference issue isn’t quite as simple as you present it."

And, your analysis is at best quite debatable. We can spin elections left & right, of course. Still, if the public is acting "precisely" because of one law, they can you know, vote in Romney or kick the Dems out of the Senate, and DEMOCRATICALLY the matter can be settled.

I'm with Sotomayor today myself. If they overturn the so-called mandate (a word no more there than "tax"), let Congress settle what to do. SC has the power of judicial review. I'm okay with that. But, it should be done with the right way.

It is clear that the individual mandate is constitution under 200 years of S.CT. precedents such as McCullough v Maryland, Wickard v Filburn, Raich v Gonzales and Comstock v US. It is also clear that the distinction between activity and inactivity when it relates to being a health care consumer and getting sick or an injury is merely wordplay. Free- loading the health care system is an economic activity, the idea that young people or the unwilling to pay insurance population will always pay their medical costs out of pocket is delusional.The idea that health care insurance coverage and medical costs are not a pressing national problem that only can be regulated by the Federal Governmentis specious. The idea that there is a fundamental right to not buy insurance is ridiculous. The proof that this is not a fundamental right is that the State has the right to regulate.It is time for the 5 conservative S.Ct judges to realize that their legitimacy is on the line and that impeachment would be the proper response to holding the ACA unconstitutional.

His post gives away too much. The demand for a "limiting principle" is phony because it's a demand for the Court to restrict a granted power on the basis of something found *outside* the Constitution.

The limits on powers granted in Art., Sec. 8 are to be found in the Constitution itself. This is easiest to see with respect to the power to declare war. It would be absurd for the Court to hold that Congress couldn't declare war except for reasons the Court deemed just. Congressional power to declare war is absolute.

Similarly, the limitations on the power to regulate commerce are that the act must (a) regulate (b) commerce (c) among the several states. It must also comply with the N&P clause, which essentially incorporates the BoR.

If conservatives believe there's a "limiting principle", they should point to it in the text. Otherwise they're just asking the Court to make shit up.

We elect representatives, not monarchs. Representatives represent the will of their constituents.

What makes them "representatives" as opposed to "monarchs" is the fact that they can be voted out. In no sense is a vote "illegitimate" simply because it fails to line up with an opinion poll of constituents. Your theory of representative democracy is indistinguishable from direct democracy.

"If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects"

is the rule. This is not "plenary police power," since it is tied to specific powers. Also, and not even just the BOR, various limits in the text of the Constitution and some other overall principles like found in Printz v. U.S.

And, though it might not impress the judiciary, political limits, which even Scalia cited today, noting the reality of the filibuster.

But, Prof. Balkin like SG Verilli realizes the five want to "make shit up" so have to find yet more. Justices Souter and O'Connor are concerned about teaching students civics. I think that is too narrow of an audience.

Mark Field said...The limits on powers granted in Art., Sec. 8 are to be found in the Constitution itself...If conservatives believe there's a "limiting principle", they should point to it in the text. Otherwise they're just asking the Court to make shit up.

We libertarians and conservatives constantly refer to the text of the CC, which merely grants Congress the power to regulate (aka limit) interstate commerce. If you apply the text, the CC in no way permits Congress to order you to engage in commerce by purchasing government designed health insurance

The argument should end there, but the Supremes have so stretched the CC beyond all recognition that Jack and other proponents of the individual mandate are citing case law rather than the text. In short, the Court precedent has erased most, but not yet all of the limits imposed by the CC out of the Constitution.

Kennedy does not have a problem with prior erasures of the CC, but appears to be unwilling to be the outlaw justice who completely removes the CC from Article I and replaces it with a general police power of the Court's own making. Thus, Kennedy is asking the government or anyone else to provide him with a "limiting principle" which would theoretically allow the individual mandate, but would allow some thread of limitation in the old CC.

Jack suggested three potential limiting principles under the Commerce Clause to save the individual mandate:

1. The Moral Hazard/Adverse Selection Principle. Congress can regulate activities that substantially affect commerce. Under the necesary and proper clause, Congress can require people to engage in commerce when necessary to prevent problems of moral hazard or adverse selection created by its regulation of commerce.

In other words, Congress can expand its power under the Commerce Clause at will by simply creating an economic problem and then commanding citizens to purchase a product to correct that government created problem.

I am unsure how this in any way limits Congress' power under the Commerce Clause.

Why not broccoli? There is no moral hazard problem created when people refuse to buy broccoli. It's true that buying and eating broccoli might make you healthier, but people don't wait until they are sick to buy broccoli. That's because broccoli is not going to do them much good at that point. In this sense, broccoli doesn't work like health insurance.

The same principle holds. Broccoli is the equivalent of preventative medicine. When the government commanded insurers to cover sick people requesting insurance, it destroyed the insurance model of many healthy people paying for the few sick people. Where the mandate to get insurance expands the pool of healthy people paying into insurance, mandating people buy broccoli or preventative medicine lowers the number of sick people.

Why not cars? Under this principle, Congress can't make everyone buy a car in order to help the auto industry. There is no moral hazard that Congress is responding to that is caused by people strategically waiting to buy cars. Note, by the way, that if fewer people buy cars, the price of cars might go down, not up, as Justice Scalia thought.

In a recession, people do indeed delay buying cars, harming the auto industry. While this hypo is not as analogous as broccoli, it does have merit.

2. The Interstate Externalities Principle...States that adopt guaranteed issue and community ratings rules will become magnets for sick people, driving up rates, and uninsureds may flock to states without individual mandates, further driving up rates in the states they leave. This discourages many states from adopting this combination of reforms.

This is the inverse of non-limiting principle one and involves no hypothetical commerce at all. In sum, this argument urges that states will not enact regulations harming the economy unless Congress has the right to command us to buy health insurance. The Commerce Clause does not provide Congress with the power to create commerce to enable damaging regulations.

3. The "It's a tax, stupid!" Principle. Congress can regulate economic activities that cumulatively affect interstate commerce. But if Congress wants to regulate inactivity, it must use the taxing power instead. Congress can use its taxing power to give people a choice between engaging in commerce or paying a tax. The rules for the taxing power are well settled since the New Deal. The tax (1) must promote the general welfare, (2) must raise revenue; and (3) and it must not be a criminal penalty in disguise.

This is a rather desperate workaround to the Commerce Clause and not a limiting principle. The problems here are that Obama, Congress and even the left justices on the Supreme Court recognize that this is a penalty. The legislation repeatedly calls it a penalty. If it walks like a duck...

BD: We elect representatives, not monarchs. Representatives represent the will of their constituents.

Steve M said...What makes them "representatives" as opposed to "monarchs" is the fact that they can be voted out.

No, that makes them elected. A representative represents.

Your theory of representative democracy is indistinguishable from direct democracy.

The only difference between direct democracy and representative democracy is the means of enacting the will of the people into policy - directly or indirectly.

In no sense is a vote "illegitimate" simply because it fails to line up with an opinion poll of constituents.

I would recall the words of the Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Wow! It appears that Kennedy could very well join the four conservatives to strike down all of Obamacare because the government has already admitted that parts of the remaining legislation would have to fall with the individual mandate and Kennedy thinks that slicing and dicing the law would be improperly activist and that it would be better to strike down the entire law!

JUSTICE KENNEDY: When you say judicial restraint, you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the Act. I suggest to you it might be quite the opposite. We would be exercising the judicial power if one Act was -- one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended. By reason of this Court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me, can be argued at least to be a more extreme exercise of judicial power than to strike than striking the whole. (Page 36)

BDPThe constitution was never meant to be so self limiting that government could not adapt to changing realities.

THe Declaration of Independence is NOT the constition. TO cite it as an argument is specious at best. PPACA is good polic that was enacted through constituitonally driven processes. (FWIW the sovereign state theory led to the free state debates, civil war, reconstruction and jim crow.) All of them driven by a desire for states to defend the interests of the propertied over the less fortunate.

At the core of this debate is the question. Are we american citizens or citizens of a state that is part of a larger nation. I can make a lot of equal protection arguments based on the 14th and 15th amendments that congress does have a right and responsibility to protect individual citizens. (Arguably the individual states ceded most powers to the fed govt. through these amendments.)